Selected Appellate Case Law

on §5C1.2 (Safety Valve)

Prepared by the 

Office of General Counsel

U.S. Sentencing Commission

October 10, 2000

Disclaimer: Information provided by the Commission's Legal Staff is offered to assist in understanding and applying

the sentencing guidelines. The information does not necessarily represent the official position of the Commission,

should not be considered definitive, and is not binding upon the Commission, the court, or the parties in any case.
i

TABLE OF CONTENTS

Page

A. Eligibility ............................................................... 1

1. Applicable Offenses ................................................. 1

2. Effective Date ...................................................... 1

3. After Trial ........................................................ 1

4. Impact of Plea Agreement ............................................. 2

B. Statutory Criteria ......................................................... 2

1. One Criminal History Point ........................................... 2

2. Possession of a Firearm .............................................. 2

3. Death or Serious Bodily Injury ......................................... 4

4. Leadership Role .................................................... 4

5. Disclosure Requirement .............................................. 4

a. To the “Government” .......................................... 5

b. “All Information and Evidence” .................................. 5

c. Method of Disclosure .......................................... 6

d. Refusal to Testify ............................................. 7

e. Lying ....................................................... 7

f. Constitutionality .............................................. 9

g. Fear of Retaliation ........................................... 10

h. Distinction between §§5C1.2(5) and 5K1.1 (Substantial Assistance) .... 11

i. Distinction between §§5C1.2 and 3E1.1 (Acceptance 

of Responsibility) ............................................ 11

C. Burden of Proof ........................................................ 12

D. Judicial Findings ........................................................ 13

1. Evidentiary Hearing ................................................ 13

2. Necessity of Findings ............................................... 13

E. Supervised Release ...................................................... 13

F. Departures ............................................................. 14

G. Appellate Jurisdiction .................................................... 14

H. Retroactive Application ................................................... 15
1

A. Eligibility

1. Applicable Offenses

Notwithstanding any other provision of law, in the case of an offense under . . .

21 U.S.C. §§ 841, 844, 846, 960, or 963, the court shall impose a sentence pursuant

to the guidelines . . . without regard to any statutory minimum sentence . . . 

a. In United States v. McQuilkin, 78 F.3d 105 (3d Cir.) cert. denied, 117 S. Ct. 89

(1996), the Third Circuit held thatthe safety valve does notapply to convictions

under 21 U.S.C. § 860, the “schoolyard” statute. Only defendants convicted

under one of the drug statutes specifically enumerated in 18 U.S.C. § 3553(f)

may qualify for safety valve relief. See United States v. Anderson, 200 F.3d

1344 (11thCir. 2000)(same); United States v. Kakatin, 214 F.3d 1049 (9th Cir.

2000)(same).

b. In United States v. Osei, 107 F.3d 101 (2d Cir. 1997), the Second Circuit held

thatthe district court erred in concluding that §2D1.1(b)(4) is only available if

the defendant is subject to a statutory minimum. As long as the defendant meets

the requirements of§5C1.2, the reductionin§2D1.1(b)(4) appliesto a defendant

with offense level 26 or higher, even if he is notsubject to a statutoryminimum.

See also United States v. Leonard, 157 F.3d 343 (5th Cir. 1998); United States

v. Mertilus, 111 F.3d 870 (11th Cir. 1997).

2. Effective Date

In enacting 18 U.S.C. § 3553(f), Congress specified that the provision “shall apply to

all sentences imposed on or after” September 13, 1994. (See H-Retroactive

Application, page 12)

3. After Trial

In United States v. Sherpa, 110 F.3d 656 (9th Cir. 1997), the Ninth Circuit held that the

district court did not clearly err in applying the safety valve after the defendant was

convicted by a jury. The government argued that the jury verdict precluded a finding of

truthfulness under §5C1.2(5). The Ninth Circuit concluded that the safety valve could

still apply even if the defendant professed his innocence throughout the proceedings.

Upon arrest, the defendant had cooperated with customagents by providing names and

details of his contacts, but maintained thathe was not aware that he was carrying drugs.

The districtcourtbelieved the defendant, despite the jury’s verdict. “[W]e hold that the

safety valve requires a separate judicial determination of compliance which need not

be consistent with a jury’s findings.” Id. at 662.
2

4. Impact of Plea Agreement

In United States v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000), the First Circuit held

that the district court erred in finding that a provision in the plea agreement barred the

courtfromconsideringwhetherthe defendant qualified for a safety valve reduction. The

provision read, “no further adjustments to the defendant’s total offense level shall be

made.” The “safety valve” provision, included in Chapter Five, is not a Chapter Three

“adjustment;” itis a congressional directive and “sui generis.” The court must apply the

safety valve if the defendant meets the criteria. “In a non-binding plea agreement, the

government cannot contract around the safety valve.” The case was remanded for

resentencing.

B. Statutory Criteria

1. One Criminal History Point -- 18 U.S.C. § 3553(f)(1); §5C1.2(1)

the defendant does not have more than 1 criminal history point, as determined under

the sentencing guidelines

a. In United States v. Resto, 74 F.3d 22 (2d Cir. 1996), the Second Circuit held

thatthe defendant’sfour criminal historypoints disqualified himfromreceiving

the safety valve, even though the district court departed downward to Criminal

HistoryCategoryI. The safety valve applies only if the defendant does not have

more than one criminal history point “as determined under §4A1.1.” §5C1.2,

comment. (n.1). 

b. In United States v. Valencia-Andrade, 72 F.3d 770 (9th Cir. 1995), the Ninth

Circuit held thatthe district court correctly interpreted § 3553(f) as precluding

the court from applying the safety valve, even though the court found that the

defendant’s two criminal history points based on two convictions for driving

with a suspended license overrepresented the seriousness of the defendant’s

criminal history. See also United States v. Robinson, 158 F.3d 1291 (D.C. Cir.

1998), cert. denied, 119 S. Ct 1155 (1999); United States v. Orozco, 121 F.3d

628 (11th Cir. 1997).

2. Possession of a Firearm -- 18 U.S.C. § 3553(f)(2); §5C1.2(2) 

the defendant did not use violence or credible threats of violence or possess a firearm

or other dangerous weapon (or induce another participant to do so) in connection

with the offense 

a. InUnited States v. Wilson, 105 F.3d 219 (5th Cir.), cert. denied, 118 S.Ct. 133

(1997), the Fifth Circuit held thatin determining a defendant’s eligibility forthe

safety valve, §5C1.2(2) allows for consideration of only the defendant’s

conduct, not the conduct of his co-conspirators. The defendant was therefore

still eligible for relief under the safety valve even though a co-conspirator
3

possessed a gun. USSG §5C1.2(2) provides: “[c]onsistent with §1B1.3, the

term ‘defendant,’ as used in subdivision (2), limits the accountability of the

defendant to his own conduct and conduct that he aided or abetted, counseled,

commanded, induced, procured, or willfully caused.” This language mirrors

§1B1.3(a)(1)(A), but omits the text of §1B1.3(a)(1)(B)–the subsection that

includes as “relevant conduct” acts and omissions undertaken in a “jointly

undertakencriminal activity.” See In Re Sealed Case, 105 F.3d 1460 (D.C.Cir.

1997) (co-conspirator liability cannot establish possession under the safety

valve). See also United States v. Clavijo, 165 F.3d 1341 (11th Cir. 1999);

United States v. Wilson, 114 F.3d 429 (4th Cir. 1997).

b. In United States v. Burke, 91 F.3d 1052 (8th Cir. 1996), the Eighth Circuit held

that the government is not required to show that a firearm was actually used to

facilitate the offense to prove that the defendant possessed a firearm “in

connectionwith” the offense and thus preclude the defendant fromreceiving the

“safety valve.” The Eighth Circuit relied on its previous interpretation of the

meaningofthe phrase “in connectionwith,” used in§2K2.1(b)(5), thatprovides

an enhancement if the defendant used or possessed a firearm “in connection

with” another felony offense. 

c. InUnitedStates v. Wilson, 106 F.3d 1140 (3d Cir. 1997), the ThirdCircuitheld

that to be denied safety valve relief, the defendant need not actually possess a

firearm at the time of arrest, as long as his firearm possession was part of the

“same course of conduct” as the offense of conviction. The defendant argued

that his possession of a firearm during drug dealing a year prior to the current

offense of conviction was not part of the same course of conduct. The Third

Circuit agreed with the districtcourtthat that the earlier drug dealing activities,

duringwhichthe defendant possessed a weapon, were sufficientlysimilarto the

instant offense of conviction and thus fell within the definition of “same course

of conduct.” The district court correctly concluded thatthe defendant failed to

meetthe requirement of §5C1.2(2). See also, United States v. Wright, 113 F.3d

133 (8th Cir. 1997)( “merely because the firearms in question were not found

on the defendant at the time of his arrest, does notmean he did not possess them

in connection with his offense.”). 

d. In United States v. Smith, 175 F.3d 1147 (9th Cir. 1999), the Ninth Circuit held

that conduct warranting a two-level increase under §2D1.1(b)(1) necessarily

defeats application ofthe safety valve. See also United States v. Vasquez, 161

F.3d 909 (5thCir. 1998)(equating safety the safety valve with the enhancement);

United States v. Hallum, 103 F.3d 87 (10th Cir. 1996)(affirming the district

court’s use of the commentary to §2D1.1 to interpret §5C1.2).

e. In United States v. DeJesus, No. 99-1499, 219 F.2d 117 (2d Cir. 2000), the

Second Circuit held thatthe “inconnectionwith the offense” language in §5C1.2

is equivalent to the “in relation to” language of 18 U.S.C. § 924(c). The

government mustshow thatthe firearm“served some purpose with respectto the
4

offense,” and that the weapon “at least must facilitate, or have the potential of

facilitating, the drug trafficking offense.” 

3. Death or Serious Bodily Injury – 18 U.S.C. § 3553(f)(3); §5C1.2(3)

the offense did not result in death or serious bodily injury to any person

4. Leadership Role – 18 U.S.C. § 3553(f)(4); §5C1.2(4)

the defendant was not an organizer, leader, manager, or supervisor of others in the

offense, as determined under the sentencing guidelines and was not engaged in a

continuing criminal enterprise, as defined in 21 U.S.C. § 848

In United States v. Bazel, 80 F.3d 1140 (6th Cir.), cert. denied, 519 U.S. 882 (1996),

the Sixth Circuit rejected a claimthat use of the conjunctive term “and” rather than the

disjunctive term“or” in§5C1.2(4)requires disqualificationfromthe safety valve based

on role only if the defendant was both an organizer, leader, manager, or supervisor

“and” engaged in a continuing enterprise. “Bazel's argument would be correct if §

3553(f) or §5C1.2 were phrased in terms of what the government would have to prove

was true ofthe defendant, but unfortunately for Bazel, the statute is phrased in terms of

what the defendant must show was not true of him.” The defendant is not eligible for

the safety valve if he meets either condition.

5. Disclosure Requirement – 18 U.S.C. § 3553(f)(5); §5C1.2(5)

not later than the time of the sentencing hearing, the defendant has truthfully

provided to the Government all information and evidence the defendant has

concerning the offense or offenses that were part of the same course of conduct or of

a common scheme or plan, but the fact that the defendant has no relevant or useful

other information to provide or that the Government is already aware of the

information shall not preclude a determination by the court that the defendant has

complied with this requirement
5

a. To the “Government”

i. In United States v. Rodriguez, 60 F.3d 193 (5th Cir.), cert. denied, 516

U.S. 1000 (1995), the Fifth Circuit held thatfor purposes of §5C1.2(5),

statements to a probation officer did not constitute statements to "the

Government." See also United States v. Martinez, 83 F.3d 488 (1stCir.

1996); United States v. Contreras, 136 F.3d 1245 (9th Cir. 1998). 

ii. In United States v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996), the

Ninth Circuit held thatthe disclosure requirement of the “safety valve”

does not require the defendant to give information to a specific

government agent. The Circuitrejected the government’s argument that

the defendant failed to provide information to the government because

he did not discuss his involvements in a prior incident with the current

prosecutor. “The prosecutor’s office is an entity, and knowledge

attributed to one prosecutoris attributable to others as well.” SeeWhite

v. United States, 858 F.2d 416, 421 (8th Cir. 1988), cert. denied, 489

U.S. 1029 (1989). 

b. “All Information and Evidence” 

i. In United States v. Maduka, 104 F.3d 891 (6th Cir. 1997), the Sixth

Circuit held thatthe requirement that the defendant provide information

about other participants is not dependent onwhether the defendant was

convicted of conspiracy. Even if not convicted of conspiracy, a

defendantmust provide information concerning “the immediate chainof

distribution.” See United States v. Scharon, 187 F.3d 17 (1st

Cir.1999)(safety valve denied because the defendant should have

disclosed the identity of the person on whose behalf he was acting);

United States v. Thompson, 81 F.3d 877 (9th Cir. 1996)(defendant

denied safety valve relief for refusing to reveal source of drugs), cert.

denied, 117 S. Ct. 214 (1996);UnitedStates v.Woods, 210 F.3d 70 (1st

Cir. 2000)(defendant’s refusal to provide information about other

players in the offense justified denial of safety valve relief).

ii. In United States v. Myers, 106 F.3d 936 (10th Cir.), cert. denied, 520

U.S. 1270 (1997), the Tenth Circuit held that §5C1.2(5) requires

disclosure of everything the defendant knows about his own actions and

those who participated inthe crime with him. The defendant argued that

his disclosure of his own actions was sufficient. The Tenth Circuit

disagreed and found that the defendant refused to provide other

information such as who were his buyers or the names of others

connected to his operation. Because he failed to show that he disclosed
6

all information known to him, regardless of whether or not it was

relevant or useful to the government’sinvestigation, the defendant failed

to meet his burden of proving he qualified under § 3553(f).

c. Method of Disclosure

i. In United States v. Ivester, 75 F.3d 182 (4thCir.) cert. denied, 518 U.S.

1011 (1996), the FourthCircuitaffirmed the districtcourt’s denial ofthe

defendant’s request for a “downward departure” under §3553(f). The

Government did not seek information from the defendant, and the

defendant did not volunteer any information. "[D]efendants seeking to

avail themselves of downward departures under 18 U.S.C. § 3553(f)

bear the burden of affirmatively acting, no later than sentencing, to

ensure that the Government is truthfully provided with all information

and evidence the defendants have concerning the relevant crimes." See

United States v. Flanagan, 80 F.3d 143 (5th Cir. 1996).

ii. In United States v. Montanez, 82 F.3d 520 (1st Cir. 1996), the First

Circuit upheld the district court’s denial of safety valve relief, but held

that a defendant is not required to offer himselffor debriefing to satisfy

§ 3553(f) disclosure requirement. Here the defendant’s written

disclosure was drawnalmostverbatimfroma government affidavit, and

the government pointed outsuspicious omissionsfromwhichthe district

court correctly decided that the defendant did not provide full

disclosure. The First Circuit noted that nothing in 18 U.S.C. § 3553(f)

specifiesthe form, place, or the manner ofthe disclosure. Nevertheless,

because it is up to the defendantto persuade the district court that he has

“truthfully provided” the required information and evidence to the

government, a defendant who declines to offer himselffor a debriefing

takes a very dangerous course.

iii. In United States v. Brack, 188 F.3d 748 (7th Cir. 1999), the Seventh

Circuitheld thatthe defendant’struthful written statement combined with

his request for a proffer session constituted compliance with safety

valve, where the government “rebuffed” defendant’s request. The

government “could not complain of incompleteness when it refused to

allow him to finish telling his story.” 

iv. In United States v. Wrenn, 66 F.3d 1 (1st Cir. 1995), the First Circuit

held that the defendant did not “provide” information as required under

§5C1.2(5) when the sole manner of disclosure was the defendant's

unwittingly taped conversation in furtherance of his criminal conduct,
7

recorded as part ofthe government'sinvestigation. The court stated that

§ 3553(f)(5) “contemplates an affirmative act of cooperation with the

government." 

d. Refusal to Testify

In United States v. Carpenter, 142 F.3d 333 (6th Cir. 1998), the Sixth Circuit

held that a defendant’srefusal to testify at a criminal proceeding involving coconspirators does not preclude him from receiving the benefit of the safety

valve. The defendant provided all the information he had concerning the

offenses, but refused to testify attrial. The government argued that the defendant

was required to provide testimony to grand and petit juries. The district court

held that as a matter of law it was precluded from applying the safety valve.

The Sixth Circuit reversed, holding that a defendant is required to provide

informationand evidence to the government, notthe courtand that“evidence [as

required under § 3553(f)] is limited to those things in the possession of the

defendant prior to his sentencing, excluding testimony, that are of potential

evidentiary use to the government.” 

e. Lying

i. In United States v. Long, 77 F.3d 1060 (8thCir.), cert. denied, 519 U.S.

859 (1996), the Eighth Circuit held that the defendant may not lie to the

government in an interview and then satisfy §3553(f) by admitting the

truth during cross-examination at the sentencing hearing.

ii. In United States v. Marin, 144 F.3d 1085 (7th Cir.), cert. denied, 119

S. Ct. 265 (1998), the Seventh Circuit held thatto satisfy § 5C1.2(5) a

defendant who provides the government with untruthful pre-sentencing

disclosures must provide complete and truthful disclosure bythe time of

the commencement of the sentencing hearing. The defendant cannot

deliberately mislead the government and wait until the middle of the

sentencing hearing to cure his prior misstatements. Here, the defendant

changed histestimony during the sentencing hearing, and thus, the district

court was correct to deny the safety valve to the defendant. 

iii. In United States v. Tournier, 171 F.3d 645 (8th Cir. 1999), the Eighth

Circuit held thatthe defendant was eligible for the safety valve because

she provided full and truthful cooperation, though “grudging and fitful,”

by the time of the sentencing hearing. The defendant provided false

denials or withheld information on relevant subjects of her knowledge
8

of the conspiracy to the government at four interviews. Just before the

sentencing hearing, she filed an affidavit containing complete and

truthful information concerning the offense. The Eighth Circuit rejected

the government’s argument that §3553(f)(5) should be construed to

prohibit application ofthe safety valve to defendants who wait until the

last minute to cooperate fully. The statute only requires that the

information be provided by the time of the sentencing hearing. See

United States v. Schreiber, 191 F.3d 103 (2d Cir. 1999)(lies and

omissions do not disqualify a defendant fromsafety valve reliefso long

as the defendant makes a complete and truthful proffer not later than the

commencement of the sentencing hearing).

iv. In United States v. Miller, 179 F.3d 961 (5th Cir. 1999), the Fifth

Circuit held that a defendant cannot be denied safety valve relief for

lying about prior drug offenses that were not part of the same course of

conduct or of a common scheme or plan as the offense of conviction.

The district court refused to grant safety valve relief to the defendant,

concluding that the defendant lied about his role in a prior drug

transaction. The defendant argued that neither a four-year old marijuana

arrest nor a two-year old cocaine transaction bore any relationship to

the present offense of conviction. The appellate court agreed with the

defendant, holding irrelevant the defendant’s lies about his prior

activities that were not substantially connected nor sufficiently similar

to the offense of conviction. Because the defendant had provided all

information about his current offense of conviction, he was entitled to

safety valve relief. 

v. In United States v. Morones, 181 F.3d 888 (8th Cir. 1999), the Eighth

Circuit upheld the district court’s denial of the safety valve to a

defendant who originally told the government the truth, but later

recanted. If the sentencing court finds that the initial recanted story was

truthful, or thatin recanting the defendant has been untruthful, the court’s

finding thatthe defendant has not “truthfully provided to the Government

all information and evidence concerning the offense” is not clearly

erroneous. Here, because the district court found the initial recanted

story truthful, the defendant is precluded from safety valve relief. The

EighthCircuitdid note that“[s]afety valve reliefis notprecluded simply

because a tardy disclosure is less helpful to the government.” 

vi. In United States v. Figueroa, 199 F.3d 1281 (11th Cir. 2000), the

Eleventh Circuit held that a defendant must give complete and truthful

disclosure, even if withheld or misrepresented information would not

have aided further investigation or prosecution. The district court
9

granted safety valve relief, after finding that some of the defendant’s

disclosures were incomplete and untruthful. The district court

determined thatthe withheld informationwould not be ofmuchuse to the

government. The Eleventh Circuit reversed, holding that §5C1.2(5)

does not empower the sentencing court to apply the safety valve simply

because it concludesthatwithheld or misrepresented informationwould

not aid further investigation or prosecution. 

vii. In United States v. Brownlee, 204 F.3d 1302 (11th Cir. 2000), the

Eleventh Circuitfound that “[n]othing in [18 U.S.C. § 3553(f)] suggests

that a defendant who previously lied or withheld information from the

government is automatically disqualified from safety-valve relief.”

When the defendant was arrested, he provided the DEA with a proffer

in which he failed to disclose the source ofhis cocaine. On the morning

ofthe sentencing hearing, the defendant provided the prosecutor and an

agent with the name of his supplier. The district court denied the

defendant’s request for safety valve relief based on the government’s

position thatthe defendant’s failure to disclose his supplier earlier did

not constitute “disclosing information in good faith.” The Eleventh

Circuit found that § 3553(f) and §5C1.2 require only that the defendant

provide information “not later than the time of sentencing hearing.”

Because the defendant met the deadline, the district court erred in not

determining whether the defendant was truthful before denying him

safety valve relief. 

 

f. Constitutionality

i. In United States v. Washman, 128 F.3d 1305, 1307 (9th Cir. 1997), the

Ninth Circuit held that § 3553(f)(5) does not raise constitutional

concerns because it does not mete out additional punishment if a

defendant decides not to disclose information. 

ii. In United States v. Arrington, 73 F.3d 144 (7th Cir. 1996), the Seventh

Circuit held thatthe disclosure requirement does not implicate the Fifth

Amendment right againstselfincrimination. As the Circuit reasoned in

cases addressing the constitutionality of §3E1.1, denying relief is not

“penalizing the defendant but denying him a benefit.” citing Ebole v.

United States, 8 F.3d 530, 536-37 (7th Cir. 1993)(requirements for

reduction under §3E1.1 do not implicate Fifth Amendment).

iii. In United States v. Cruz, 156 F.3d 366 (2d Cir. 1998), the Second

Circuit held that the requirement in §5C1.2 that a defendant admit to
10

relevant conduct beyond that included in the offense of conviction in

order to gain a reduction in his sentence does not violate the right

againstself-incrimination. The court noted thatthe choice presented to

a defendant under §5C1.2 between relief from the mandatory minimum

sentence and a waiver of his right against self-incrimination is

analogous to the choice confronting defendants in plea bargain cases,

and gives rise to no more compulsion than is present in that situation.

See infra, United States v. Stewart, 93 F.3d 189 (5th Cir. 1996).

g. Fear of Retaliation

i. In United State v. Tang, 214 F.3d 365 (2dCir. 2000), the Second Circuit

held that the defendant’s fear for the safety of his fiancee and family

members did not excuse him from providing information about a codefendant, as required under §5C1.2(5). The statute does not provide

an exception, and in other contexts (substantial assistance, testimony

under grant of immunity) the law does not authorize withholding

required information. “We see no basis for creating a fear-ofconsequences exception” to the safety valve disclosure requirement.

ii. United States v. Stewart, 93 F.3d 189 (5th Cir.1996), the Fifth Circuit

held that the disclosure requirement of §5C1.2(5) is constitutional and

does not impose cruel and unusual punishment. The defendant argued

that the disclosure requirement of §5C1.2(5) was unconstitutional

because it subjected the defendant and her family to violent retaliation.

In rejecting the defendant’s argument, the Fifth Circuit noted that it had

resolved similar challengesto §3E1.1. See United States v. Mourning,

914 F.2d 699, 707 (5th Cir. 1990)(“[t]o the extent the defendant wishes

to avail himself ofthis provision, any dilemma he faces in assessing his

criminal conduct is one of his own making.”). A defendant can refuse

to cooperate and be sentenced under the regular sentencing scheme.

h. Distinction between §§5C1.2(5) and 5K1.1 (Substantial Assistance)

Upon motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of another person

who has committed an offense, the court may depart from the guidelines. 

§5K1.1, p.s.; see also, 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n).

Courts that have examined the similarity between the disclosure requirements

for a substantial assistance departure and for relief under the safety valve have
11

found thatthe § 3553(f) requirement that a defendant disclose "all information,"

including the identities of co-conspirators, does not make §5K1.1 redundant.

Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995); Ivester, 75 F.3d 182 (4th

Cir.)("§5K1.1 requires a motion from the government and the government's

evaluation of the extent of the defendant's assistance is given `substantial

weight.' Under § 3553(f), by contrast, the court determines whether a defendant

has complied with its provisions, including subsection 5"), cert. denied, 518

U.S. 1011(1996) Furthermore, § 3553 specifically states that the defendant may

still enjoy the benefits of the section even if the information he provides is not

"relevant or useful" to the government.) See United States v. Maduka, 104 F.3d

891 (6th Cir. 1997).

i. Distinction between §§5C1.2 and 3E1.1 (Acceptance of Responsibility)

To qualify for an adjustment for acceptance ofresponsibility, a defendant must

"truthfully admit the conduct comprising the offense(s) of conviction." USSG

§3E1.1, comment. (n.1(a)). 

i. InUnitedStates v. Arrington, 73 F.3d 144 (7th Cir. 1996), the defendant

received a three-level reduction for acceptance ofresponsibility under

§3E1.1, but the district court determined that the defendant had not

truthfullyprovided all the information concerning the offense as required

under §3553(f)(5). The Seventh Circuit agreed with the lower court and

concluded that the admission of responsibility to obtain a reduction

under §3E1.1(a) is not necessarily sufficient to satisfy §3553(f)(5).

Under §3553(f)(5), the defendant must provide “all information”

concerning the offense or offensesthatwere part of the same course of

conduct or of a commonscheme or plan," whereas, §3E1.1(a) requires

the defendant to admit only the conduct comprising the elements of the

offense(s) of conviction. See United States v. Yate, 176 F.3d 1309

(11th Cir. 1999); United States v. Sabir, 117 F.3d 750 (3d Cir. 1997);

United States v. Adu, 82 F.3d 119 (6th Cir. 1996).

ii. In United States v. Conde, 178 F.3d 616 (2d Cir. 1999), the Second

Circuit held that, unlike §3E1.1, the disclosure obligation imposed by

§5C1.2(5) requires more than accepting responsibility for one’s own

acts. Under §5C1.2, the defendant must also disclose the involvement

of any co-conspirators.

iii. In United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996), the Ninth

Circuit held that a defendant who does not qualify for an adjustment for

acceptance ofresponsibility under §3E1.1 is not necessarily precluded

from relief under the safety valve. In Shrestha, the defendant confessed
12

to knowledge of the contraband and provided names of his contacts to

customs agents before trial. At trial and at sentencing, the defendant

insisted that he did not know he was carrying drugs. The government

argued that the “defendant’s recantation of his guilty knowledge” cast

doubt on his original confession, and that perjury at trial should

automatically defeat a claimfor sentence reduction undersection (5) of

the safety valve provision. The Ninth Circuit rejected the government’s

argument stating that: “[t]he safety valve is not concerned with sparing

the government the trouble ofpreparing for and proceeding with trial, as

is USSG §3E1.1.” Id. at 938. The Ninth Circuit added that the safety

valve authorizes courts to grant relief to defendants who provide the

government with complete information by the time of the sentencing

hearing, and that the defendant’s recantation did not diminish the

information he had earlier provided. Id. at 940.

C. Burden of Proof 

The defendant has the burden of proving, by a preponderance ofthe evidence, the applicability

of the safety valve. See United States v. Wrenn, 66 F.3d 1 (1st Cir. 1995); United States v.

Gambino, 106 F.3d 1105 (2d Cir. 1997); United States v. Ivester, 75 F.3d 182 (4th Cir. 1996),

cert. denied, 116 S. Ct. 2537 (1996); United States v. Flanagan, 80 F.3d 143 (5th Cir. 1996);

United States v. Arrington, 73 F.3d 144 (7th Cir. 1996); United States v. Ajugwo, 82 F.3d 925

(9th Cir. 1996), cert. denied, 117 S. Ct. 742 (1997); United States v. Verners, 103 F.3d 108

(10th Cir. 1996).

D. Judicial Findings 

1. Evidentiary Hearing

In United States v. Real-Hernandez, 90 F.3d 356 (9th Cir. 1996), the Ninth Circuit held

thatthe defendant did not have a right to an evidentiary hearing to determine truthfulness

for purposes of applying the safety valve provision. There is no general right to an

evidentiary hearing at sentencing, and the district court has discretion to determine

whether to hold such a hearing. 

2. Necessity of Findings

In United States v. Myers, 106 F.3d 936 (10th Cir.), cert. denied, 117 S. Ct. 2446

(1997), the Tenth Circuit held that district courts must make a determination as to

whether or not defendants meet the requirements under § 3553(f). The district court
13

declined to address whether the defendant met the five criteria listed in § 3553(f) and

held that whether the safety valve provision should apply is a matter within its

discretion. The Tenth Circuit disagreed, stating that the plain language of the statute

mandatesthat the court disregard the statutory minimum if the defendant meets the five

criteria. See United States v. Espinos, 172 F.3d 795 (11th Cir. 1999)(the court bears

the responsibility for determining the truthfulness of the information the defendant

provides the Government);United States v. Gama-Bastidas, 142 F.3d 1233 (10th Cir.

1998)(court must determine quality and completeness of all information the defendant

provided the government to satisfy subsection 5). 

E. Supervised Release

A defendant who meets the criteria under this section is exempt from any otherwise

applicable statutory minimum sentence of imprisonment and statutory minimum term of

supervised release. §5C1.2, comment. (n.9); see also §5D1.2, comment. (n.1).

In United States v. Hendricks, 171 F.3d 1184 (8th Cir. 1999), the Eighth Circuit held that a

defendant who qualifiesfor the safety valve must be sentenced to a term of supervised release

without regard to the minimum statutory penalty. The district court believed it was bound by

the ten-yeartermofsupervised release contained inthe mandatoryminimumstatute. The Eighth

Circuit reversed, concluding that once a defendant qualifies for the safety valve, the court has

no authority to look to the statute in determining the sentence. The Eighth Circuit stated that

since the defendant was convicted of a Class A felony, the applicable term of supervised

release under the guidelines is three to five years. 

F. Departures

1. In United States v. Pratt, 87 F.3d 811 (6th Cir. 1996), the Sixth Circuit held that neither

18 U.S.C. § 3553(f) nor §5C1.2 authorizes a downward departure from the guideline

sentencing range without an independent basis for the departure. The defendant argued

that the court had statutory authority to sentence her to aslittle as 24 months. The court

concluded that the phrase “lowest term of imprisonment is at least 24 months”

establishes a floor below which the Sentencing Commission cannot lower the sentencing

range, and is not an independent basis for departure. Id. at 813.

2. In United States v. Solis, 169 F.3d 224 (5th Cir.), cert. denied, 120 S.Ct. 112 (1999),

the Fifth Circuit held that the district court misapplied the guidelines by granting the

defendant a five-level departure pursuantto §5C1.2, based onthe defendant’s assistance

to the government. A court may depart based on substantial assistance only if the

government files a motion under §5K1.1. Here, the defendant was only entitled to a

two-level reduction under §2D1.1(b)(6).
14

G. Appellate Jurisdiction

1. In United States v. Cruz, 106 F.3d 1553 (11th Cir. 1997), the Eleventh Circuit held that

it had jurisdiction under 18 U.S.C. § 3742 to hear a defendant’s claim addressing the

denial of the safety valve. The government cited United States v. McFarlane, 81 F.3d

1013 (11th Cir. 1996) in its argument that a district court’s decision not to grant a

defendant safety valve relief is not reviewable on appeal. McFarlane held that a

defendant is normally prohibited from appealing a district court’s failure to grant a

downward departure from the applicable guideline range unless the district court

believed that it did not have discretion to grantsuch a departure. In Cruz, the Eleventh

Circuit distinguished McFarlane by explaining that the safety valve is not a departure;

instead it requires an eligible defendant to be sentenced within the guideline range

without regard to a statutory minimum. Because § 3553(f) directs the court to apply

the sentencing guidelines without regard to the statutoryminimumif the five criteria are

met, a sentence above the guideline range would be “a result of an incorrect

application of the sentencing guidelines,” and thus reviewable under § 3742(d). 

2. In United States v. Ivester, 75 F.3d 182 (4th Cir.) cert. denied, 518 U.S. 1011 (1996),

the defendant asserted that the district court erred in failing to grant him a downward

departure fromhisfive-year statutoryminimumsentence because he had complied with

the provisions for downward “departure” set forth by the "safety valve" statute at

18 U.S.C. § 3553(f), incorporated in §5C1.2. The appellate court agreed to hear the

appeal because the claim was "essentially one for review of a sentence allegedly

imposed in`violation of law.'" See 18 U.S.C. § 3742(a)(1).

H. Retroactive Application 

1. In United States v. Thompson, 76 F.3d 442 (2d Cir. 1996), the Second Circuit held that

Amendment 515 could not be applied retroactively because it was not specifically

included under §1B1.10. Amendment 515 added a specific offense characteristic to

§2D1.1 authorizing a two-level reduction of an offense level of 26 or higher if the

defendantmeets the criteria ofthe §5C1.2. See United States v. Sanchez, 81 F.3d 9 (1st

Cir.), cert. denied, 117 S. Ct. 201 (1996).

2. In United States v. Clark, 110 F.3d 15 (6th Cir. 1997), the Sixth Circuit held that

appellate courts may take the safety valve statute into account in pending sentencing

cases and that district courts may consider the safety valve statute when a case is

remanded under § 3742 or § 3582(c). The defendant received a mandatory minimum

sentence of 121 months after the safety valve provision was enacted. The district court

denied her motion to amend the sentence in accord with the safety valve provision,

stating that it lacked discretion to issue a sentence below the statutory minimum. The

appellate court found that § 3582 was intended to be applied broadly. Also, because
15

a case is notfinal when it is pending appeal, and a sentence has not been imposed until

after review ofthe appellate court, the safety valve provision could be applied in cases

on appeal. The court added that application of the safety valve statute when a sentence

is modified would notresult in ex postfacto violation because the defendant would not

be disadvantaged by its application. 

3. In United States v. Mihm, 134 F.3d 1353 (8th Cir. 1998), the Eighth Circuit concluded

that a court has authority to apply safety valve reliefto a defendant who is resentenced

pursuantto §3582(c)(2), evenifthe originalsentence occurred before the effective date

of the safety valve (September 13, 1994). The Eighth Circuit held that a resentencing

under § 3582(c)(2) requires the court to consider all relevantstatutoryfactors. Because

§ 3553(f) is a generalsentencing factor, the district courtmusttake it into account. See

contra, United States v. Stockdale, 129 F.3d 1066 (9th Cir. 1997).

4. In United States v. Stockdale, 129 F.3d 1066 (9th Cir. 1997), the Ninth Circuit

concluded that a defendant who is eligible for relief under § 3582(c)(2) is not entitled

to application of the safety valve upon resentencing, if the original sentencing occurred

before the effective date of § 3553(f) (September 13, 1994). The fifth prong of

§ 3553(f), requiring the defendant to provide information“[n]otlaterthanthe time ofthe

sentencing,”supports a construction that the safety valve applies only if the findings

were made at the original sentencing. The language in § 3582(c)(2) concerning

modification of a sentence, “implies that the safety valve statute applies during

sentencing, not in subsequent reduction proceedings.” The guideline language in

§1B1.10 instructs a court to apply the listed amendment upon resentencing but to leave

“all other guideline application decisions unchanged.” The Ninth Circuit also noted

that though the “inferences from grammar might be a bit thin . . . they lead to the only

result that makes sense.”